Comparative Public Law

Lecture 1
Introduction

Why Comparative Law?

Different legal systems
Different legal traditions and families
because of:
History
Cultural diversity
Social and political contexts
Religions
Beliefs
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History
Since the Ancient Greece times some
forms of comparison have been used.
Aristotle compared 153 constitutional
rules/practices to find the best legal and
political structure for the Greek town-state.
Roman jurists, in the V century B.C.,
developed a comparative study to draft the
Law of the Twelve Tables, the basic set of
rules of Roman Law.
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History
Montesquieu, in the XVIII c. compared different
laws to find the best form of government;
L'Esprit des lois, 1748:
human laws in their relationships with the
government, climate, and general character of the
country, its customs, and its religion.

Not to examine different laws and discover their

meaning, but their underlying principles and the
conditions which must be verified if such laws
are to work for the happiness of man in society:
Separation of powers: legislative, executive and
judicial;

Basis of contemporary democratic systems.

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History
In the XIX c. in Germany and France development
of systematic studies of Comparative Law;
At the beginning of the XX c. comparative studies
become an academic discipline.
i.e. the British Institute of International and Comparative
Law founded in 1895.

Paris, 1900, first international congress of

Comparative Law.
International Academy of Comparative Law,
established in The Hague, 1924.
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Relevance
Contemporary world
Communications
Business
Exchanges/Travel
Migration/Integration
Globalisation= What is it? Is it new? Is it
different from before? How does it involve
legal issues?
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Main characteristics
Comparative Law is not an organised
system of norms/rules and legal principles;
It is mainly a method to look at law.
The main justification is based on the fact
that:
Different national legal systems have both
similarities and differences among them.
However, other legal systems and norms are
relevant today.
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Legal plurality
National legal systems:
Private international law/Conflict of laws

International legal system UN and other

organisations;
European Law:
EU Law; accession (acquis communautaire)

Council of Europe
Democratic institutions and human rights
European Commission for Democracy through Law,
(Venice Commission), Council of Europe's advisory
body on constitutional matters. Established in 1990.

Spanish Constitution, 1978

Section 10
(1) The dignity of the person, the inviolable rights which
are inherent, the free development of the personality, the
respect for the law and for the rights of others are the
foundation of political order and social peace.
(2) Provisions relating to the fundamental rights and
liberties recognized by the Constitution shall be
construed in conformity with the Universal Declaration of
Human Rights and international treaties and agreements
thereon ratified by Spain.
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Constitution of Afghanistan, 2004

Article 7
The state shall observe the United Nations
Charter, inter-state agreements, as well as
international treaties to which Afghanistan has
joined, and the Universal Declaration of Human
Rights.
The state shall prevent all kinds of terrorist
activities, cultivation and smuggling of narcotics,
and production and use of intoxicants.
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Objectives and Purposes

Political
Normative
Educational
Professional
Scientific/Academic
Practical

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Methodology
Consider different legal systems
Work of analysis, study and
systematisation
Compare rules, institutions and legal
principles
To identify similarities and differences;
To offer new legal developments in
legislative and judicial activities.
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Methodology
To compare we need:
Knowledge of different legal traditions, legal
families and legal systems;
Languages, to understand the difference and
content of legal terminology;
Look at original legal sources: constitutions,
codes, statutes, judicial decisions;
and legal doctrine: to understand the ideas
and culture underlining the legal phenomena.
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Culture
The World Conference on Cultural Policies
(MONDIACULT), Mexico City, 1982
adopted the celebrated broad definition of
culture:
"Culture... is ... the whole complex of distinctive spiritual,
material, intellectual and emotional features that
characterize a society or social group. It includes not
only arts and letters, but also modes of life, the
fundamental rights of the human being, value systems,
traditions and beliefs."
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Legal Culture(s)
Different cultures in the world;
Influence on the legal traditions and
structures;
Is law part of a culture?
Is law a culture?
Can we have a universal/global law?

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Uniformity and Harmonisation

International Law
Unifying pressure
Legal pluralism?
Universalism and Fragmentation

Comparative Law
Harmonisation
Different perceptions of law and justice

The case of human rights

The case of EU Law
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